Property Flashcards
1
Q
4 Present Possessory Estates
A
(1) Fee Simple Absolute
(2) Defeasible Fees (3 Species)
(3) Fee Tail
(4) Life Estate
2
Q
Fee Simple Absolute: 3 Features
A
“To A” or “To A and His Heirs”
(1) freely alienable (transferable)
(2) freely devisable (capable of transfer by will)
(3) freely descendible (will pass to heirs if holder dies intestate)
Absolute ownership of potentially infinite duration
3
Q
Fee Simple: “Heirs”
A
A living person has no heirs.
A living person has heirs apparent or prospective heirs, not ascertainable until A’s death. There is no future interest.
4
Q
Defeasible Fees: 3 Species
A
3 Fee Simples–> To A, with a Catch
(1) Fee Simple Determinable
(2) Fee Simple Subject to Condition Subsequent
(3) Fee Simple Subject to Executory Limitation
5
Q
Fee Simple Determinable
A
“To A, so long as she remains a lawyer”
Clear durational language
*Always subject to the stated condition. If the stated condition is violated, forfeiture is automatic.
Freely alienable, devisable, descendible.
Possibility of reverter (the future interest) belongs to the grantor.
6
Q
Fee Simple Subject to Condition Subsequent
A
“To Rachel, but if coffee is ever consumed on site, grantor reserves the right to reenter and retake.”
(1) Grantor retains right of entry (power of termination, statement of right of reentry).
(2) Clear durational language.
Can be terminated at the grantor’s prerogative. NOT automatic. Grantor can choose to look the other way.
7
Q
Fee Simple Subject to Executory Limitation
A
“To A, so long as she remains a lawyer, but if she leaves the legal profession, then to B”
A has a fee simple subject to executory limitation
B has a future interest called a shifting executory interest
Automatic forfeiture occurs in the event of the condition’s breach BUT in favor of someone other than O, the grantor.
8
Q
3 Rules for Construction for Defeasible Fees
A
(1) Words of mere intention, desire, or hope are inadequate to encumber an estate as a defeasible fee (courts hate conditions)
(2) Absolute restraints on alienation are unenforceable (must be linked to rxble time limited purpose) [repugnant to public policy]
(3) Restraint on alienation linked to a rxble, time-limited purpose is valid
9
Q
Life Estate
A
“To A for life”
“Romantic Estate”
Must be measured in explicit lifetime terms, and NEVER in term of years.
10
Q
Life Estate Pur Autre Vie
A
“To A for the life of B”
Life estate measured in the terms the lifetime of another
11
Q
Reversion
A
Future interest in a life estate held by the grantor.
“To A for life”
O has a future interest called a reversion. If O is dead, it reverts back to O’s heirs.
12
Q
Remainder– Life Estate
A
Future interest in a life estate held by a 3rd party.
“To A for life, then to B”
A has a life estate, B has a remainder
13
Q
2 Rights and Duties of the Life Tenant
A
(1) life tenant is entitled to all reasonable uses and profits from the land
(2) life tenant must not commit waste; must not do anything to injure the future interest holder
14
Q
3 Species of Waste in Life Tenancies
A
(1) Voluntary/Affirmative Waste– willfull destruction
(2) Permissive Waste– neglectfulness, remiss, disregard (i.e. not patching kitchen ceiling, which leads to ceiling collapse).
(3) Ameliorative Waste– may not engage in activities that enhance the property’s value unless all future interest holders are known and consent (sentimental value and rxble expectations)
15
Q
Voluntary Waste and Natural Resources: General Rule
A
Life tenant must not consume or exploit natural resources on the property (such as timber, oil, or minerals) unless one of the four exceptions applies [PURGE]
16
Q
4 Exceptions to the Life Tenant’s Duty Not to Commit Voluntary Waste
A
PURGE
Prior use: prior to grant, land used for exploitation, life tenant may continue unless otherwise agreed.
Reasonable repairs: life tenant may consume natural resources for repairs and maintenance
Grant: life tenant may exploit with express grant
Exploitation: land is suitable only for exploitation unless otherwise agreed (e.g. a quarry)
17
Q
Open Mines Doctrine
A
Tenant may continue to mine but is limited to already open mines.
Tenant cannot increase the rate of extraction or open new mines or wells, EVEN IF the old extraction source has been exhausted
18
Q
Permissive Waste Obligations (2)
A
(1) Obligation to Repair: life tenant must simply maintain premises in rxbly good repair so not to harm the future possessors’ interests
(2) Obligation to pay all ordinary taxes: life tenant must pay all ordinary taxes on the land, to the extent of any income or profits life tenant is reaping from the land. If no income or profit, life tenant is required to pay all ordinary taxes only to the extent of the premises fair rental value
19
Q
6 Categories of Future Interests
A
FUTURE INTERESTS CAPABLE OF CREATION IN O THE GRANTOR
(1) Possibility of reverter
(2) Right of entry aka power of termination
(3) Reversion
FUTURE INTERESTS IN SOMEONE OTHER THAN O (TRANSFEREE)
(4) Vested remainder
(5) Contingent remainder
(6) Executory interest
20
Q
Possibility of Reverter
A
Accompanies only the fee simple determinable.
Ex: O conveys to A so long as popcorn is never made on the premises. A has a fee simple determinable (present possessory interest); O has the possibility of reverter (future interest)
21
Q
Right of Entry
A
AKA power of termination
Accompanies the fee simple subject to condition subsequent.
“Bobby Brown’s prerogative to terminate in the event of the condition’s breach.”
Ex: O conveys to A, but if coffee is ever consumed on site, O reserves the right to reenter and retake. O has a right of entry; A has a fee simple subject to condition subsequent.
22
Q
Reversion
A
Future interest that arises in a grantor who transfers an estate of lesser duration than she started with, other than a fee simple determinable.
The leftover, the catch-all.
O, holder of a fee simple absolute, conveys to A for life or to A for 50 years. A has a reversion.
23
Q
3 Future Interests Capable of Creation in O (Grantor)
A
(1) Possibility of reverter
(2) Right of entry (AKA power of termination)
(3) Reversion
24
Q
3 Future Interests Capable of Creation in Transferees
A
(1) Vested remainder
(2) Contingent remainder
(3) Executory interest
25
Remainders
"Must I always be waiting, waiting on you"
Future interest- created in a grantee (entities other than O) that are capable of becoming possessory on the natural conclusion of the present estate.
Have to be sociable; tagalong to a present possessory estate of finite duration. Typically follows a life estate or a term of years.
NEVER follow the defeasible fees!
26
Contingent Remainder
A remainder is contingent where it is either
(1) created in an as-yet unknown taker (to A for life, and then to her firstborn child. The as yet unborn child has a contingent remainder)
(2) subject to an as-yet unmet condition precedent or prerequisite to his entry onto the land (to A for life, and then if he graduates from law school, to B)
OR BOTH
27
Vested Remainder
A remainder is vested if it is both
(1) created in a known taker, who
(2) is not subject to a condition precedent or prerequisite to his entry onto the land
28
Vested Remainder: 3 Subcategories
(1) Indefeasibly vested
(2) Vested remainder subject to complete defeasance
(3) Vested remainder subject to open
29
Indefeasibly Vested Remainder
"No Strings Attached"
To A for life, then to B
- B exists and is alive
- A exists and is alive
A has a life estate
B has an indefeasibly vested remainder
If B predeceases A, at common law B's future interest passes by will or intestacy
30
Vested Remainder Subject to Complete Defeasance
"Comma Rule"
Subject to forfeiture if condition subsequent manifests.
To A for life, then to B, but if B leaves the legal profession, then to C
A- present possessory life estate
B- vested remainder subject to complete defeasance b/c of condition subsequent
C- Shifting executory interest
31
Comma Rule
When conditional language in a transfer follows language that, taken alone and set off by commas, would create a vested remainder, the condition is a condition subsequent and you have a vested remainder subject to complete defeasance
32
Vested Remainder Subject to Open
Remainder is vested in a group or category of takers, at least one of whom is eligible or qualified to take.
To A for life, and then to A's children.
A is alive, and has children B and C. A has a life estate. B and C have vested remainders subject to open.
Group or category may increase in size.
33
When is a class open?
When others can still join
34
When is a class closed?
When no others can join
Rule: class closes when any member can demand possession.
35
Womb rule
Child in utero will share in class
36
Executory Interest
Future interest created in a grantee that takes effect by CUTTING SHORT another. Typically follows a defeasible fee.
Takes effect b/c of the estate holder's forfeiture.
37
Springing Executory Interest
Cuts short the grantor.
"O conveys Blackacre to A when he marries" [A is presently unmarried]
When A married, A will divest O
O has a fee simple subject to A's springing executory interest
38
Shifting Executory Interest
Cuts short another transferee. Always follows the defeasible fee.
"O conveys to A but if A ever uses the premises for non--residential purposes, then to B"
A has a defeasible fee simple subject to B's shifting executory interest. B has a shifting executory interest.
39
Rule Against Perpetuities
Certain kinds of future interests are void if they vest too remotely. They must, to be valid, be certain to be capable of vesting within the so-called perpetuities period. They must be capable of becoming possessory within 21 years after the death of a relevant life in being.
To be valid, it must be a certitude at the time of the grant's creation that we will know who gets to take in the future within 21 years after the expiration of the relevant measuring life
40
4 Step Technique for Tackling Rules Against Perpetuities Challenges: Step 1
Determine which future interests have been created by the conveyance.
The RAP potentially applies ONLY to the contingent remainders, executory interest, and certain vested remainders subject to open.
The RAP does NOT apply to any of the 3 future interests capable of creation in O, the grantor (possibility of reverter, right of reentry, and reversion).
Doesn't apply to indefeasibly vested remainders or vested remainders subject to complete defeasance.
41
4 Step Technique for Tackling Rules Against Perpetuities Challenges: Step 2
Ask, what has to happen for the future interest holder to take?
Ex: to A for life, and then to A's children
A must die, leaving behind a child
42
4 Step Technique for Tackling Rules Against Perpetuities Challenges: Step 3
Find a measuring life.
Look for a person, alive at the date of conveyance, whose life and/or death is relevant to the condition's occurrence
Ex: to A for life, and then to A's children
Measuring life: A
43
4 Step Technique for Tackling Rules Against Perpetuities Challenges: Step 4
Dispositive inquiry: will we know for sure within 21 years of the death of that measuring life if there is or is not a future interest holder to take?
Ex: Yes. We will know at the moment of A's death if she left behind a child or not.
44
2 RAP Bright Line Rules
(1) An executory interest with no limit on the time within which it must vest violates the RAP
Ex: O conveys to A as long as alcohol is never served on site, and if alcohol is served, to B.
A has a fee simple subject to B's shifting executor interest. A gets a fee simple determinable with possibility of reverter to O.
RAP will not assert itself w/r/t future interests capable of creation in O
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(2) A gift to an open class condition on the members surviving to an age beyond 21 violates common law RAP.
"Bad as to one, bad as to all."
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"O conveys to A for life, then to such of A's children as live to the age of 35." A is alive, class is still open.
45
Reforms to the RAP: Wait & See/Second Look
"Wait and See" AKA "Second Look"
Majority reform effort. Validity of any suspect future interest is determined on the basis of the facts as they occurred after the death of the measuring life.
Embrace cy pres
Reduction of any offensive age contingency automatically down to 21 years
46
Reforms to the RAP: Uniform Statutory Rule Against Perpetuities
Codifies the traditional rule against perpetuities period of lives in being + 21 years, provides an alternative 90 year bright line vesting period.
Embrace cy pres
Reduction of any offensive age contingency automatically down to 21 years
47
Cy Pres
"As Near as Possible"
Gives the court the equitable discretion to redraft any offensive grant that as near as possible matches the grantor's intent while still comporting with the RAP.
48
Acquiring Possessory Interest by Adverse Possession
May be raised as a defense to ejectment or as an affirmative claim to quiet title.
If AP prevails over TH, title vests in AP.
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Elements:
Actual entry and use as average owner
Continuous
Hostile
Open/Notorious
Exclusive
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49
Exclusive of Title Holder
(1) possession is not shared w/ TH-- if TH or any other possessor is on the property without AP's permission
(2) standard is conduct of ordinary owner-- e.g. not objecting to every crossing by hiker is ok for AP, merely being hospitable
50
Continuous for Statutory Period
Measured by standard of ordinary owner's usage.
Occasional absences do not disrupt continuity.
Seasonal use: depends on whether sufficient evidence of presence w/ intent to return
May include tenancy of person that AP leases to.
51
Open and Notorious
Use must be publicly visible. Gives TH opportunity to see AP is possessing.
Different standard for sub-surface intrusion: actual notice
Some jurisdictions also have enhanced notice requirements for boundary disputes in build-up areas
52
Actual Entry & Use as Average Owner
Measured by standard of ordinary owner. Determined by range of actual and permitted uses in the area. May be defined by statute.
Functions: determines reliance interest of AP. Ensures TH is on notice that AP claims possession.
53
Hostile
Claim of right/title
1) Objective test: AP does not have permission of TH
2) Subjective tests
- Good faith: AP must enter and posses with good faith belief in right to possess the property
- Bad faith (rejected test): AP must enter w/ intent to possess property they know belongs to someone else
54
Tacking (Continuous)
Current AP may combine time in possession with predecessor if the 2 are in privity.
- Voluntary transfer from AP1 to AP2.
- Any nonhostile nexus between possessors
- Does not require writing conforming to the statute of frauds
- OUSTER DEFEATS PRIVITY-- NO TACKING!
55
Disabilities
Certain conditions-- specified in statute-- may delay (toll) the start of adverse possession clock.
Disability must be present at the inception of AP (when AP begins)
Disability only delays the clock, it does not eliminate AP.
56
Color of Title
Additional Statutory form of adverse possession.
Same elements as AP except
1) enter under document that purports to convey title
2) typically requires good faith, has shorter statutory period
3) if some portion actually possessed, may get constructive possession of full lot described
57
3 Types of Concurrent Estate
(1) Joint Tenancy: 2 or more own with right of survivorship
(2) Tenancy by the Entirety: protected marital interest between spouses w/ right of survivorship
(3) Tenancy in Common: two or more own without right of survivorship
58
Joint Tenancy
"I'm a Survivor"
2 or more own Blackacre with the right of survivorship.
(1) Right of survivorship: when 1 joint tenancy dies, that share goes automatically to the surviving joint tenant
(2) A joint tenant's interest is alienable, but not devisable or descendible---> last survivor standing takes all
59
How to Create a Joint Tenancy
1) Need the 4 unities in one document
2) Grantor must state the right of survivorship
Joint tenants are disfavored-- they get to avoid probate
60
4 Unities
Time
Title
Identical Shares
Right to Possess the Whole
May use a straw; may convey to both
61
How to Sever a Joint Tenancy
Survivorship may be terminated by any unilateral act of JTS co-tenant
(1) through transfer of full possessory interest to a 3d party, who then takes as a a TIC w/ remaining co-tenants
(2) through unilateral declaration of intent to hold as TIC, provided that the declaration takes the form of a transfer from a JTS to a TIC and there is sufficient evidence of delivery--> look for state regulations
62
Joint Tenancy: Claims of Creditors or Other Transferees of Lesser Interests
(1) If grant of mortgage or lease (or other lesser interest) is made by all JTS, then the grant remains valid against surviving JTS
(2) if a grant of mortgage or lease is made by one JTS (A) but not joined by other (B) and A dies while mortgage/lease is outstanding, then in all or most jurisdictions, mortgage or lease evaporates (interest evaporates) and surviving joint tenant takes free of the lesser interest
63
Joint Tenancy: Lesser Interest Holder Remedy
Mortgagor or tenant may sue the estate of the deceased joint tenant for whatever loss they incur by termination of the interest.
64
Severing a Joint Tenancy: Sale
A joint tenant may sell or transfer her interest during her lifetime.
May be secret or without consent.
Severs the joint tenancy w/r/t that share (buyer becomes a tenant in common).
If we started with more than 2 joint tenants in the first place, joint tenancy remains intact between other, non-transferring joint tenants
65
Severing a Joint Tenancy: Partition (2 Variations)
"the Breakup Plan"
Variation 1: Partition by Voluntary Agreement. Parties work out a private partition agreement
Variation 2: Partition in Kind. A court action for physical division of Blackacre if in the best interests of all. Works best if Blackacre is sprawling.
Variation 3: Forced sale. A court action finds it in the best interests of all. Divide proportionally.
66
How to Sever a Joint Tenancy: Mortgage (Title Theory)
One joint tenant's execution of a mortgage or a lien on his or her share will sever the joint tenancy as to that now encumbered share only in the minority of states that follow this approach
67
How to Sever a Joint Tenancy: Mortgage (Lien Theory)
A joint tenant's execution of a mortgage on his or her interest will not sever the joint tenancy
68
Right of Partition
Joint tenants and tenants in common have a right to claim partition; any restraints on the right to partition are treated as DROIA and upheld only if rxble in purpose and limited in duration
69
Right of Partition: Partition in Kind
At common law, the default. Physical division of the property into separate parcels. Where the division could not be made into exactly equal shares, one party could be required to compensate the other for the actual share.
Remains the default when one party is in actual possession and the division can be made w/o undue prejudice.
70
Right of Partition: Partition by Sale
The property is sold and the proceeds divided according to the co-tenant's shares
71
Tenancy by the Entirety
Between MARRIED parties with the right of survivorship.
Recognized in 21 states. Cannot be created in a couple engaged to be wed.
"Can't touch this"-- creditors of only 1 spouse cannot touch this tenancy; neither tenant acting alone can defeat right of survivorship unilaterally. All attempted transfers are void.
Exception: federal tax liens along with some forms of forfeiture for use of the property in a criminal enterprise.
Spouses must be married at the time they take title and also take by same instrument at same time, and receive proportional shares. . If not, tenants in common, or joint tenants with survivorship.
72
Tenancy in Common
"I'm devisable, I'm descendible too"
2 or more own with no right of survivorship.
(1) Each tenant in common owns an individual part, and each has the right to possess the whole.
(2) Each tenant in common's interest is devisable, descendible, and alienable. No survivorship rights between tenants in common.
(3) Presumption favors tenancy in common (always subject to probate)
(4) Tenant in common's proportional interest is subject to the claims of creditors
73
Tenancy in Common: Possession
Each co-tenant is entitled to possess and enjoy the whole.
If one co-tenant wrongfully excludes another co-tenant from possession of the whole or any part, he has committed OUSTER, an actionable wrong
74
Tenancy in Common: Rights and Remedies
(1) Right to use and enjoy all of shared interest
(2) Right of partition
(3) Liability for rent
(4) Liability for taxes, repairs, or improvements
(5) Liability for waste
75
Remedy for Waste: Monetary Damages
Money damages for diminished value of the remainder, esp. when claim is brought at the end of a life estate.
76
Remedy for Waste: Injunctive Relief
May have court order to block changes or repair damage
77
Remedy for Waste: Forfeiture of the Life Estate, Leading to Acceleration of Vested Remainder or Reversion into Possession
If remaining value of life estate (based on actuarial tables: Y remaining years of life expectancy x $Z annual value of life estate) is less than the value of damages
78
Remedies for Waste
(1) injunctive relief
(2) Monetary damages
(3) forfeiture of life estate, leading to acceleration of vested remainder, or reversion into possession
79
Liability for Rent: Ouster
If one co-tenant ousts the other co-tenant, the co-tenant in possession owes the ousted co-tenant the FMV rent of the ousted co-tenant's portion of the interest
80
Liability for Rent: If No Ouster
1) Tenant out of possession is not ordinarily entitled to rent from the tenant in possession. BUT if tenant in possession asks the tenant out of possession to contribute to the upkeep of the property, the tenant out of possession can require the tenant in possession to offset any such liability by FMV rental share of tenant in possession
2) Rent from a co-tenant in exclusive possession: absent ouster, a co-tenant in exclusive possession is not liable to the other co-tenant for rent
81
Liability for Rent: Rental to 3rd Party
If one co-tenant purports to rent entire co-tenancy to 3rd party, that co-tenant must be willing to share rents she actually received with other co-tenant. If the other co-tenant does not elect to joint the lease, then she may exercise her full right of possession as co-tenant, despite the 3rd party lessee's expectations based on the lease.
82
Co-Tenants: Adverse Possession
Unless he has ousted the other co-tenant, the tenant in exclusive possession cannot acquire title to the whole to the exclusion of the other co-tenant (no hostility)
83
Liability for Taxes: Carrying Costs
Tenants expected to pay proportionate share, but if one tenant is in sole possession (no ouster), the tenant out of possession can demand that the tenant in possession offset the value of the FMV rent from the claim to contribute to payment of taxes.
Fair share: undivided interest in the whole
84
Liability for Repairs
A repairing co-tenant enjoys a right to contribution for reasonable and necessary repairs provided that she has told the other of the needs for repairs.
Some jurisdictions treat like taxes (especially if obviously necessary, provided non-repairing co-tenant gets notice), like replacement of damaged roof.
Others treat repairs like improvements, with no obligation to contribute
85
Liability for Improvements
No obligation to share in the cost of improvements; but improving co-tenant can recover value of improvement at time property is sold and also bears full liability for any drop in value caused.
86
Liability for Waste: Destruction of Buildings
Because co-tenants are allowed to make improvements, there is no liability simply for changing the property.
HOWEVER, if the changes diminish the value of the property, a non-consenting co-tenant may claim damages for waste.
87
Liability for Waste: Non-Renewable Resources
A co-tenant who extracts mineral wealth must account to co-tenant for profits received by the extraction.
88
Ameliorative Waste
Current possessor takes actions that materially change the structures or use of the property, but the change enhances the economic value of the property for future possessors.
89
Ameliorative Waste: Most Defensible
A material change in use will be especially defensible if the surrounding property uses have also changed considerably during the life estate, rendering continued use in its received condition both inconsistent with other uses, and also very unlikely that the future possessors would want to use it for its received condition
90
Ameliorative Waste: Majority Rule
Permit reasonable changes to the use, even if it involves substantial alteration of the property, provided it actually improves the use of the property
UNLESS
1) grantor expressly barred it or
2) future possessors have some rxble and identifiable subjective basis for delivery in unchanged state
91
Ameliorative Waste: Common Law
Actionable: current possessor (or his estate) could be ordered to restore the prior use or pay damages for the change
92
Rights and Duties of Co-Tenants: Waste
A cotenant must not commit waste. A cotenant will be liable for any waste committed during the co-tenancy.
An action for waste resides during the lifetime of the co-tenancy.
93
Rights and Duties of Co-Tenants: Partition
Any joint tenant or tenant in common has the right to bring an action for partition
94
4 Leasehold Interests
(1) Tenancy of/for years (AKA term of years, estate for years)
(2) Periodic tenancy
(3) Tenancy at will
(4) Tenancy at sufferance
95
Tenancy of Years
Lease for a fixed period of time. As long as you know the termination date from the start, you have a term of years. No notice needed to terminate.
Note: a term of years greater than 1 year must be in writing to satisfy the statute of frauds.
96
Periodic Tenancy
Tenancy that continues for successive intervals until landlord or tenant give proper notice to terminate.
It endures continuously for successive intervals.
Can be created expressly (Ex: LL conveys to T from year to year).
Can also arise by implication
Notice is needed to terminate!
97
3 Ways for Periodic Tenancy to Arise by Implication
(1) When land is leased with no provision of duration, but provision is made for the payment of rent at regular intervals
(2) Oral term of years in violation of the statute of frauds creates an implied periodic tenancy based on how rent is tendered
(3) Holdover doctrine: if LL elects to hold over a tenant who has wrongfully stayed on beyond the expiration of the original lease. Based on how rent is tendered.
98
Notice
At common law, notice must be given at least equal to the length of the period itself.
Exception: if the lease ran from year to year or more, only 6 months notice would be needed.
Parties may alter notice period by contract
Modified by statute in most states.
Usually written.
99
Tenancy at Will
Tenancy of no fixed duration. Endures at the will of either the LL or the T.
Ex: to T, for as long as LL or T desire
Terminable at the will of either party. Significantly curbed by modern statute (rxble demand to quit/vacate needed).
Unusual.
100
Tenancy at Sufferance
Created when a tenancy has wrongfully held over, past the expiration date of the lease.
Presence of a pending eviction.
Give this wrongdoer a leasehold interest (tenancy at sufferance) to allow the LL to collect rent/proceed against wrongdoer
Always short lived, until successful eviction
101
Tenant Duties (5)
(1) Duty to pay rent
(2) Duty not to commit waste
(3) Duty to vacate at the end of leasehold term
(4) Duty to repair (maintain premises)
(5) Liability to 3rd parties
102
Tenant's Liability to 3rd Parties (Tort Law)
T is responsible for keeping the premises in rxbly good repair.
In tort, T is liable for injuries sustained by 3rd parties she invited, even when LL has expressly promised to make all repairs.
LL is under NO DUTY to make premises safe (caveat lessee)
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5 Exceptions: CLAPS
Common Areas
Latent Defects
Assumption of repairs
Public use
Short term lease of a furnished dwelling
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103
Tenant's Duty to Maintain Premises (Repair)
A tenant must simply maintain the premises and make ordinary repairs (maintenance) other than ordinary wear & tear.
Must not commit waste (affirmative, permissive, ameliorative).
104
Tenant's Duty to Repair and the Law of Fixtures
When T removes fixtures, she creates voluntary waste.
Fixture: once movable chattel attached to realty with intent to permanently improve realty. Passes with ownership of the land.
Any express agreement controls.
If no express agreement, T may remove if removal won't substantially harm premises. If damage--> objective.
105
Tenants's Duty to Repair When Tenant Has Expressly Covenanted in Lease to Maintain Property in Good Condition for Duration of the Lease
At common law: T was responsible for any loss to the property, including loss attributable to force of nature
Today's majority view: T may end the lease
106
Tenant's Duty to Pay the Rent: Breached but Still in Possession
Tenant at Sufferance.
1) Proceed against wrongdoer for eviction through courts (summary eviction proceedings)
2) Continue the relationship and sue for rent owed.
LANDLORD MUST NOT ENGAGE IN SELF HELP.
107
Tenant's Duty to Pay Rent: Breached and Not in Possession
Ex: Tenant wrongfully leave a term of years.
SIR
S: Surrender (treat tenant's vacating as a tacit offer of surrender; if lease is for 1 year or more, must be in writing to comply with statute of frauds). Sue for breach
-time expected to be vacant
-cost of replacing tenant
-different in value between T's rent and FMV
I: ignore the abandonment and hold tenant liable (minority of states)
R: Relet the premises. Hold liable for any deficiency.
- time vacant
- cost of replacement
- difference in value between T and new T's rent
LL must mitigate in most jurisdictions.
108
Landlord's Duty: Deliver Possession
LL must provide tenant with LEGAL possession: legal right to be there (lease) and keys
LL must provide residential tenant with ACTUAL PHYSICAL possession: if at start of T's new lease, a prior holdover is still in possession, LL has breached, and T gets damages
109
Landlord's Duty: Implied Covenant of Quiet Enjoyment
Applies to both residential and commercial premises.
Implicit promise to provide T with quiet use and enjoyment. LL's promise not to unreasonably interfere with tenant's possession and use of premises.
Breached by:
(1) Actual wrongful eviction
(2) Constructive eviction
110
Constructive Eviction
Landlord's actions or pattern of actions gives T no choice but to vacate the premises.
Aggrieved T must SING
SI: substantial interference due to LL
N: tenant must NOTIFY LL, and LL fails to act
G: goodbye/get out (T must vacate) after LL fails to remediate
111
Is LL liable for the bothersome conduct of other tenants?
As a general rule: No.
2 Exceptions:
1) LL must not permit a nuisance on site
2) LL must control common areas (hallway, stairwell)
112
Landlord's Duty: Implied Warranty of Habitability
Implicit promise by all RESIDENTIAL landlords.
Nonwaivable. Premises must be fit for basic human habitation. Elaborated on by caselaw and statute.
Problems that trigger: plumbing, running water, heat
113
What are the Aggrieved Tenant's Entitlements When the LL Has Breached the Implied Warranty of Habitability?
MR3
Move out! End the lease BUT she doesn't have to
Repair and deduct (permitted by statute)
Reduce rent or withhold all rent until the court assess fair rental value in view of the premises defects (withheld funds to to escrow)
Remain in possession, pay rent, and sue LL for damages
114
Landlord's Duty: Refrain from Committing Retaliatory Eviction
LL must not take reprisal against a good faith, whistle blower tenant.
LL must not harass, raise rent, move to evict, or take any other reprisals against repairing tenant. Will lead to damages.
If T raises good faith claim of implied warranty of habitability, unless LL able to overcome presumption that eviction (or refusal to extend lease) is based on T's exercise of rights), LL will be found to have engaged in retaliatory eviction.
115
Landlord Duties
(1) duty not to discriminate
(2) duty to deliver possession
(3) covenant of quiet enjoyment
(4) Implied Warranty of Habitability
(5) Protection from Retaliatory Eviction
(6) Right to Renewal of Tenancy
116
Duty Not to Discriminate
Duty not to discriminate in provision of rental housing. Statutes define:
a) protected classes
b) prohibited acts
c) exempted actors (i.e. owner-occupants)
117
What are the Aggrieved Tenant's Entitlements When the LL Has Breached the Duty to Deliver Possession? 3 Options
(1) Treat lease as terminated; sue LL for any damages in finding substitute housing
(2) Assert continuing right to possession, sue LL for costs of finding substitute housing until actual possession is delivered
(3) Sue current wrongful possessor of leasehold premises
118
Who Can Breach the Covenant of Quiet Enjoyment?
(1) LL or LL's agents
(2) Any person who holds superior title to LL (i.e. if LL holds a life estate and died during leasehold, T could sue LL's estate if evicted by remainder holder
(3) other tenants, if L has authority to control their conduct or L should have foreseen harm and failed to take steps to prevent (more uncertain/controversial)
119
Before Invoking Remedies for Breach of Covenant of Quiet Enjoyment, T Must...
Give LL notice and opportunity to cure.
Note: remedies for actual eviction relate back to the time of intrusion.
120
Covenant of Quiet Enjoyment: 3 Modes of Breach
(1) Actual eviction: physical dispossession
(2) Constructive eviction: conditions make continued possession effectively impossible (even though T retains legal and actual possession)
(3) Substantial interference
121
Covenant of Quiet Enjoyment: Actual Eviction
Physical dispossession.
a) Total: exclusion from entire leasehold.
b) Partial: exclusion from any portion of leasehold.
122
Covenant of Quiet Enjoyment: Actual Eviction Remedy
Common law: any actual eviction entitled tenant to cease paying any rent, even if eviction was only partial.
123
Assignment
Arises whenever the tenant transfers everything she has left under the original lease to another.
LL & T2 (assignee) enter into privity of estate.
If T2 (assignee) transfers interest to another assignee, assignee A is no longer liable to LL for any breach.
124
Privity of Estate
Born of possession. LL-T2.
They are liability to each other for all of the covenants in the original lease that run with the land.
Ex: promise to pay rent, repair the premises, etc.
Not in privity of contract.
T1 and LL no longer share in privity of estate.
125
Sublease
Arises when T1 (sublessor) transfers less than everything she has under the terms of the sublease.
T1 retains right to retake possession.
(1) time remaining at the end of the sublease
(2) right to oust subtenant for breach of sublease
T1 and T2 are liable to one another
LL and T1's relationship remains fully intact.
LL and T2 are in neither privity of estate or contract.
LL may assert equitable remedy (eviction). Some states may permit assertion of damages.
126
Landlord-Tenant Relationship: Sublease v. Assignment
Original T remains fully liable to LL for performance of lease promises (by privity of contract)
If T's grantee expressly accepts the terms of the original lease, that grantee, whether subtenant or assignee, comes into privity of contract.
If T assigns interest, A is liable to LL based on privity of estate.
127
5 Exceptions to Caveat Lessee
CLAPS
Common areas
Latent Defects rule: LL must warn T of hidden defects that LL knows about or should know about. Duty to warn, not repair
Assumption of repairs: once undertaken, LL must complete them with reasonable care.
Public use rule: LL who leases public space and who should know (because of significant nature of defect or short length of lease) T wont repair is liable
Short term lease of furnished dwelling: LL liable for defective conditionsn
128
Right to Renewal of Tenancy
In a few jurisdictions, residential Ts have a right to renewal at the end of the leasehold.
If LL wants to non-renew, LL must show good cause.
a) standard grounds for eviction (e.g. persistent non-payment)
b) Removal of unit from stock of rental housing.
129
Implied Warranty of Habitability
Applies to residential tenancies ONLY
A few jurisdictions have adopted an Implied Warranty of Fitness for certain types of commercial leaseholds.
Typically measured by compliance (or substantial compliance) with relevant housing, building, fire and health codes.
LL may not lease premises that fail to comply
130
Breach of the Implied Warranty of Habitability
T gives LL reasonable notice and reasonable opportunity to cure defect, AND THEN:
1) T may treat lease as terminated and quit
2) if T elects to remain, T may:
- repair and deduct cost of repair from rent
- withhold rent until defect cured and pay LL abated portion (may be required to place rent in escrow)
131
Servitudes (5 Kinds)
Refers to a family of non-possessory interests in land.
5 Kinds
(1) Easement
(2) License
(3) Profit
(4) Real Covenant
(5) Equitable Servitudes
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Easement
The grant of a non-possessory interest that entitles its holder to the limited use of another's land (the servient tenament).
Ex: right to lay utility lines, right of way
Can be affirmative (most) or negative (refrain from doing something)
133
Negative Easement
Entitles its holder to prevent the servient landowner from doing something that would otherwise be permissible.
```
Generally recognized in only 4 categories:
Light
Air
Support
Streamwater from an artificial flow
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*A minority of states also allows a negative easement for scenic view
134
Creation of a Negative Easement
Can only be created expressly, by writing signed by the grantor. No natural or automatic right to an easement.
135
Easement Appurtenant
"It takes two"
Easement is appurtenant when it benefits to holder in his physical use or enjoyment of his property.
2 parcels involved.
Dominant tenement derives the benefit
Servient tenement provides the easement
*Passes automatically with dominant tenement
136
Easement in Gross
Confers upon its holder only some personal or pecuniary advantage that is not related to his use or enjoyment of the easement holder's own land. The holder may not even have any of his own land!
Servient land is burdened.
No benefited or dominant tenement.
Not transferable unless for commercial purposes
137
Common Examples of Easement in Gross
Right to place a billboard on another's lot
Right to swim in another's pond
Right to lay power lines on another's land
Commonality: servient land is burdened, but there is no dominant tenement
138
The Easement and Transferability: Easements Appurtenant
The easement appurtenant passes automatically with the dominant tenement regardless of whether it's mentioned in any document of transfer.
The burden of an easement appurtenant will pass with the servient land, unless BFP without notice.
139
The Easement and Transferability: Easements in Gross
Easements in gross are not transferable unless they are for commercial purposes.
Ex: A has an easement to swim in B's land.
Personal easement in gross, NOT transferable
Ex: BB Co. has an easement to fish in B's lake.
Commercial easement in gross, assignable.
140
Scope of an Easement
Set by the terms or conditions that created it.
No unilateral expansion of an easement to benefit a non-dominant parcel.
141
How to Create an Affirmative Easement
PING
Prescription (COAH: continuous use for given statutory period, open and notorious, actual entry (need not be exclusive), hostile use)
Implication (implied from prior apparent use)
Necessity: continuation is reasonably necessary. Convey a part of the land with no way out except over some part of grantor's land.
Grant (more than 1 year, must be writing; deed) (deed of easement)
142
Remedies for Surcharge (3)
(1) damages for past harm to burdened property
(2) injunctive relief to bar future use that exceeds scope
(3) in rare cases, termination of easement if burden holder can prove that it is impossible to effectively enforce injunction (for example, benefit holder has extended use to property not originally intended to benefit, and is unable to separate vehicles headed for benefitted property from those headed to expanded property)
143
Easements Appurtenant: Divisibility
Easement presumed to run to any subdivided portion of originally benefited land.
Any concerns about impact of division are dealt with as a question of easement scope.
144
Easements Appurtenant: Transferability
Presumed to run with transfers of the benefited land.
Benefit of easement may not be transferred to land that was not originally intended to benefit from easement.
145
Scope of Easements
Burden holder's claim of surcharge asserting that the benefit holder has exceeded permitted use.
Scope should be stated expressly in the writing that creates the easement.
146
Location of Easement
(1) dimensions and location are ordinarily fixed at time of creation
(2) benefit holder has no right to unilateral expansion or relocation of easement (need consent of burden holder)
(3) common law rule: no unilateral relocation; but some jurisdictions (emerging trend) allow it if relocation does not materially change benefit holder's use (substantial harm), all costs of relocation are borne by the burden holder, and in some jurisdictions, burden holder must show current location of easement imposes relative hardship
147
Typical Components of Scope: Intensity of Use
For ingress-egress easements, except those created by prescription, strong presumption that intensity may increase along with reasonably foreseeable development of benefited property.
Easement created by prescription are normally restricted to the extent of use established during the period of prescription.
Easement by prescription by general public is ordinarily not recognized-- must be specific individuals or a specific benefited property claiming easement
148
Typical Components of Scope: Kind of Use
Some courts will permit variation in kinds of use provided that burden is not materially increased (e.g. permitting utilities along an ingress-egress easement)
Others take stricter view of limits on kind of use.
149
Termination of Easements: Through Conduct (Prescription)
Burden holder blocks benefit holders use of easement for statutory period.
Ex: burden holder builds structure across ingress-egress easement, and benefit holder takes no action to force easement's reopening.
150
Termination of Easements: Through Writing (Terms in Original Deed)
Easement grant may have included provisions for termination.
1. After specified time (i.e. 30 years)
2. On happening of specific events, such as a change in the use of the benefited or burdened property
151
Termination of Easements: Through Writing (Merger)
Burdened and benefited property come into possession of the same individual or entity
152
Termination of Easements: Through Conduct/Estoppel
Benefit holder induces burden holder to rely on expectation that easement will not be used in the future, and burden holder spends money in reliance on that expectation.
Ex: benefit holder orally indicates intention not to use existing driveway (benefited property has alternate entrance), and burden holder constructs stone wall.
153
Termination of Easements: Through Writing (Condemnation)
Government asserts eminent domain to take possession of easement along with burdened property-- for example, to establish a park.
If so, benefit holder is entitled to FMV compensation for "taking"
154
Termination of Easements: Through Writing (Release)
Benefit holder expressly grants burden holder deed releasing future claim to the easement
155
Typical Component of Scope: Improvement of Easement
Unless expressly restricted, benefit holder ordinarily has the right to improve the easement-- such as leveling or paving a roadway
Burden property holder has no obligation to contribute to cost of improvement, even if burden holder also has a right to use the easement.
156
Easements in Gross: Divisibility, Transferable but Non-Exclusive
If the easement is transferable but non-exclusive, then the holder of the burdened property has retained the right to grant additional uses of the easement, subject to the requirement that such additional uses must not unreasonably interfere with the use of the easement by existing benefit holders
157
Easements in Gross: Divisibility, Transferable and Exclusive
AKA Capable of Apportionment
If the easement is transferable and exclusive (that is, the holder of the burdened party has no right to use the easement), then the benefit will be deemed divisible.
A variety of presumptive limits on divisibility have been suggested (Ex: "one stock rule"-- all holders of the benefit must agree to any further devise)
Most jurisdictions follow the rule for Tenants in Common: uses may be subdivided so long as they do not unreasonably interfere with fellow benefit holders' enjoyment
158
Easements in Gross: Transferability
AKA Assignability
If the easement is intended for commercial use (such as by utility company), the easement is presumed transferable by the beneficiary.
If the easement is intended for the personal use of the beneficiary, the easement is presumed non-transferable by the beneficiary (though the burden could still run against successive holders of the burdened property).
159
Core Duty of the Burden Holder
No unreasonable interference with benefit holder's use of the easement.
Unless expressly (or impliedly-- more rarely) excluded, burden holder has the right to use easement along with benefit holder.
But benefit holder's use takes precedence. Any use by burden holder must avoid unreasonable interference.
160
Enforcement Against Successors to Original Promisor (Burden Side)
One claiming benefit must prove: WIN
Writing that contains promise of use and satisfies statute of frauds (exceptions for easement by implication, necessity, estoppel, and prescription)
Intent (typically expressed in writing) for burden to run against property possessed by defendant. For benefit to be enjoyed by plaintiff in gross or property possessed by plaintiff (appurtenant)
Notice to burden holder of easement at the time the burden holder purchased (actual, inquiry, record)
161
Express Easement
Written instrument that satisfies the statute of frauds
a) permitted use including scope of use
b) whether benefit is appurtenant (which lot or lots) or in gross
c) changes to default provision on transferability and divisibility
d) location (dimensions, etc.) of use
e) any limitations, respective of responsibilities of burdened property and beneficiary
f) possible provisions for termination (time or conditions)
162
Implied Easement from Prior Use
MUST ARISE FROM SUBDIVISION OF PROPERTY
Before subdivision, one part of property was actually used to benefit another part, and that beneficial use will be presumed to continue, creating an easement to protect that continuing use if
1) use was known to burdened party at the time of subdivision/purchase (w/r/t buried utility). Effective notice.
2) use would be expected to continue because of its importance to the benefited party.
163
Implied Easement from Necessity
Easement arises b/c the subdivision of property claiming benefit from property allegedly burdened resulted in the benefited property becoming landlocked.
1) Crucial: plaintiff must show subdivision of defendant's property resulted in a landlock
2) No need to show use prior to subdivision
3) if plaintiff had and abandoned express easement-- cannot claim necessity
4) voluntary landlocking-- jurisdictions split
5) most jurisdictions require strict necessity
6) in western states-- open road by eminent domain
164
Licenses
A mere privilege to enter another's land for some delineated purpose. Not subject to statute of frauds-- informal. Don't need a writing, Presumed non-transferable.
Freely revocable unless estoppel applies. Estoppel applies only when licensee has invested significant $/labor/both in reasonable reliance .
2 most common situations:
Tickets (freely revocable license)
Neighbors by the fence
165
Easement by Estoppel
An irrevocable license.
Permissive use (may be express or implied)
Reliance creates significant detriment to user
Generates reasonable reliance by user. What is reasonable? Consider:
-the status of the parties, including their relationship
-type and extent of reliance allegedly included (is it consistent with the permission given)
166
Profit
Gives its holder the right to enter servient land and take from it soil or some natural resource
Shares all the rules of easements
167
Covenant
Starts off as a contract regarding land. Can be a restrictive (negative) covenant (most) or affirmative
168
Restrictive Covenant
A promise to refrain from doing something related to land.
Ex: I promise not to build for commercial purposes on my land.
Ex: I promise not to paint my shutters brown
169
Affirmative Covenant
A promise to do something related to land
Ex: I promise to maintain our common fence
170
How to Know Whether to Construe as a Covenant or an Equitable Servitude?
Look for the relief plaintiff is seeking.
When plaintiff wants money damages to be made whole as a consequence of defendant's violation--> Construe promise as a covenant
When plaintiff wants an injunction--> Construe in equity (equitable servitude)
171
Real Covenants and Equitable Servitudes
Promises relating to the enjoyment of the benefitted land, which allow the possessor of the benefitted land to exert control over the use of the burdened land, and have the benefit and the burden of that promise run with the land
Must be in writing that satisfies the statute of frauds unless implied reciprocal negative servitude.
172
When Will Covenant Run with the Land at Law?
When it is capable of binding successors to the originally promising parties.
```
Ex: Neighbor A promises B that A will not build for commercial purposes on A's land.
A&B= originally covenanting parties
A's parcel burdened
B's parcel benefitted
A sells to A1, B sells to B1
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B1 wants to proceed against A1 for money damages.
Depends on whether the facts support the conclusion that the burden of the original promise runs from A-A1, and the benefit runs from B-B1.
Go "WITHN" for burden analysis
173
Will the Covenant Run with the Land at Law: Benefits
Must be WITV
Writing
Intent: usually made clear by a writing stating that benefit and burden will run to successors and assigns or else saying that benefit and burden are intended to run with the land. Courts more willing to imply intent for benefit to run if one who received the benefit of a promise retained at time of sale property that actually would be benefitted, or promise is made in the context of a common plan of development. If no benefitted property identified, the burden of the promise will not run.
Touch and concern (objective standard) Does the promise convey a real and substantial benefit for ordinary users of that property?
Vertical privity
174
Will the Covenant Run with the Land at Law: Burdens
Must be WITHVN
Writing
Intent-- the original parties intended the burden would run. Some states hold intent must be express, others permit implied intent to run from circumstances of arrangement
Touch and concerns the parties as landowners (not just citizens). Does the promise materially limit ordinary use of the burdened property?
Horizontal AND vertical privity are both needed. Must be in succession of estate. Difficult to establish.
Notice-- A1 must have had notice of the promise when she took (notice must exist at time of conveyance). Can be record, actual, or inquiry. In the context of subdivisions, can include expanded title search and a broadened definition of inquiry notice.
175
Vertical Privity
What is the relationship between the current possessor or owner and the original promisee or promisor?
Most jurisdictions accept relaxed VP: P must hold some portion of the land possessed by the original promisor (which received the benefit of the promise)
For burden side to run, most jurisdictions require strict VP: defendant must have same quality of estate that the original promisor had.
176
Horizontal Privity
What was the relationship between the original promisor and promisee when the promise at issue was made?
At common law: horizontal privity established only in real covenants made in the context of LL-T relationships.
In most US jurisdictions: buyer-seller relationship is sufficient to establish horizontal privity so long as the real covenant is contained in the deed of sale
177
Covenants Not to Compete: "Touch & Concern"
Tough cases.
Ex: restriction in a deed for unit in strip mall barring use of property for discount store or drug store.
Covenant certainly imposes a burden that touches and concerns, but does that restriction confer an actual benefit on another identifiable lot that would be used for the prohibited use and would actually benefit from the restriction on the burdened property?
178
Equitable Servitude
A promise regarding land that equity will enforce against successors.
Accompanied by injunctive relief
179
Creation of an Equitable Servitude
WITNES
Writing
Intent to bind successors
Touch and Concern
Notice
Privity not required
180
Implied Equitable Servitude
Some states refuse to imply equitable servitudes, instead, strictly construe statute of frauds.
AKA general or common scheme doctrine.
Arises in the context of a subdivision; court will imply a reciprocal negative servitude.
When land sales began, A, the subdivider, had a general scheme of residential development including defendant's lot.
Defendant had notice of restriction contained in the prior deed.
181
Implied Reciprocal Servitudes
Exception to the general rule that covenants must be written.
If a developer subdivides and sells off lots in furtherance of a common scheme, the common plan may be uniformly enforced, even if the promise was not uniformly enforced.
182
Implied Reciprocal Servitudes: Expanded Title Search
May be used to resolve the problem of an implied reciprocal servitude. This would create an express burden on lots 2-10 even though writing is contained in deed for Lot 1.
183
Enforcement of Implied Reciprocal Servitudes: Express Burden Omitted from Some Lots
If developer either accidentally or intentionally omits the express burden from some lots, an implied burden may be enforced.
Categorically barred in some jurisdictions
Most jurisdictions allow plaintiffs to prove implied reciprocal servitudes if common plan of development was in evidence prior to sale of lots in the subdivision, or common plan was substantially implemented by express burdens.
184
3 Forms of Notice
Actual Notice
Inquiry Notice (constructive notice)
Record Notice (constructive; publicly recorded documents)
185
Equitable Defenses to Enforcement of an Equitable Servitude: Doctrine of Changed Conditions
Comes up when someone subject to an equitable servitude argues for release b/c conditions of neighborhood have so changed (Ex: commercialization)
Must show that the change you allege is SO PERVASIVE that the ENTIRE area's essential character has been forever altered (not mere pockets of change)
186
Expanded Title Search Thru Subdivision Plat
Where subdivision plat (map) is recorded, subsequent purchasers may be on notice of promises made by developer that are contained in prior lots sold in the same subdivision, even the promises are not included in the chain of title of each specific lot
187
Record Notice
What would have been shown by a standard title search performed at the time when SP purchased
188
Inquiry Notice
Facts known by SP at the time of purchase would have led a reasonable party to investigate further; such investigation would have provided PS with information about a prior inconsistent claim
189
Actual Notice
Facts known by SP at the time of purchase
190
Termination of RC/ES: Through Conduct-- Estoppel
Burdened possessor relies on oral permission from possessor of benefitted property to take action that would otherwise be prohibited by RC/ES. If reliance is reasonable and incurs substantial detriment, enforcement should be barred.
191
Termination of RC/ES: Through Conduct (6 Types of Conduct)
1) Estoppel
2) Unclean Hands
3) Acquiescence
4) Abandonment
5) Changed conditions
6) Relative hardship
192
Termination of RC/ES: Through Conduct-- Through Writing
1) Terms in original deed (end after X period, end after X event)
2) Release: holder(s) of benefit may execute deed of release to burdened property, ending RC/ES
3) Merger: benefitted and burdened property come into common ownership
4) Condemnation: government may terminate covenant by payment of FMV of restriction to benefitted property or properties
193
Termination of RC/ES: Through Conduct-- Relative Hardship
Continued enforcement of the promise against defendant's property provides only a very minor benefit to plaintiff's property, but an unreasonable and disproportionate benefit to D's property.
Some courts appear to hold that D must show the covenant deprives D of reasonable opportunity to use the property.
P may be awarded money damages instead of injunctive relief
194
Termination of RC/ES: Through Conduct-- Changed Conditions
Because of circumstances that have changed since the time the promises were originally made, P's property no longer enjoys any material benefit from enforcement of the RC/ES against D
195
Termination of RC/ES: Through Conduct-- Abandonment
Plaintiff has failed to enforce the same, or a closely related, promise when previously violated by others who are also subject to the real covenant/equitable servitude
196
Termination of RC/ES: Through Conduct-- Aquiescence
Plaintiff has failed to enforce the same, or a closely related, promise when previously violated by defendant
197
Termination of RC/ES: Through Conduct-- Unclean Hands
Plaintiff has violated the same, or a closely related, promise plaintiff now seeks to enforce against defendant
198
Land Contract
Endures a relatively short life span
Standard: must be in writing, signed by the party to be bound (defendant) (get both signatures)
Must reasonably describe the land
Must state some consideration
Exception: doctrine of part performance
Preferred remedy for breach: specific performance w/ pro rata $ reduction
2 implied promises
No implied warranties of fitness or habitability
199
Doctrine of Part Performance
Narrow exception to the writing requirement for land contracts.
Sometimes equity will intervene to compel specific performance of the (albeit oral) contract for the sale of land if any 2 of 3 circumstances are met:
(1) buyer takes possession
(2) buyer remitted all/part of purchase price
(3) made substantial improvements
200
Problem of Risk of Loss: Equitable Conversion
Equitable conversion-- equity regards as done that which ought to be done.
If in interim between contract and closing, Blackacre has been destroyed through no fault of either party, the loss and the land belong to the buyer from the moment the contract is signed. Privately, most contracts reassign this loss.
201
2 Implied Promises in Every Land Contract
(1) Seller promises to provide marketable title at the closing
(2) Seller promises to decline from making any false statements of material facts. May also be held liable for failure to disclose latent material facts.
202
Marketable Title
Title free from reasonable doubt/lawsuit/threat of litigation
203
3 Circumstances that Render Title Unmarketable
(1) Adverse possession: if even part of the title rests on adverse possession, the title is unmarketable
(2) Encumbrances (can be waived): unencumbered fee simple, presence of any servitude/covenant/mortgage will render title unmarketable
(3) Zoning violations
204
Caveat Emptor
"Buyer Beware"
Buyer be diligent, hire engineers, inspectors, etc.
Exception: the builder/vendor of a new home implicitly promises the premises were constructed in a workmanlike manner.
205
Closing
The deed becomes the operative document.
It succeeds in its mission when it lawfully passes title from the buyer to the seller.
206
Deed
LEAD-- lawfully executed and delivered
Passes legal title from seller to buyer.
Must be lawfully executed and delivered
Must be in writing signed by the grantor
Must reasonably describe Blackacre
207
Delivery
(1) Delivery standard could be met when the grantor literally or manually transfers the deed instrument to the grantee
(2) However, delivery of a deed does not necessarily require actual physical transfer of the deed instrument itself
- Grantor must show present intent to be immediately bound
- Standard for delivery is a legal standard, not an actual standard.
(3) Recipient's express rejection of the deed defeats delivery
(4) Oral conditions drop
(5) Escrow agents permissible
208
3 Types of Deed
(1) Quitclaim
(2) General Warranty
(3) Statutory Special Warranty Deed
209
Quit Claim
Contains no promises
Grantor isn't even promising he has title to convey ("wasn't me")
Seller implicitly promises the in the contract to provide marketable claim of title at the closing
210
General Warranty Deed
AKA "Mother Theresa-- a Great Deed"
6 promises on behalf of grantor and predecessors in interest
PRESENT
(1) Seisin
(2) right to convey (no temporary restraint on alienation, disability)
(3) encumbrances (no servitudes/mortgages)
FUTURE
(4) Quiet enjoyment
(5) Warranty (grantor will defend grantee against lawful title claims brought by others)
(6) Further Assurances (grantor will perfect the title)
211
A Present Covenant is Breached if...
if ever, at the moment of delivery.
Statute of limitations begins to run at the moment of delivery.
212
A Future Covenant is Breached if...
until grantee is disturbed in possession.
Cause of action will not begin to accrue until such time as grantee is disturbed in possession
213
Covenant of Quiet Enjoyment
Grantee will not be disturbed in possession by 3d party's lawful claim of title
214
Covenant of Quiet Enjoyment: Constructive Eviction
Conditions make continued possession effectively impossible even though T retains legal and actual possession of premises.
Total: no portion of the premises is usable for T's purposes, T has vacated
Partial: some portion of premises is not usable for T's purposes and T has vacated that portion
215
Covenant of Quiet Enjoyment: Constructive Eviction Remedy
T may treat lease as terminated
If only partial, T may also remain in premises and abate rent by portion unusable
216
Covenant of Quiet Enjoyment: Substantial Interference and Remedy
If conditions for which LL is responsible do not make continued possession impossible, but nonetheless materially impair T's enjoyment of premises, T may sue LL for consequential damages BUT is not entitled to move out and treat lease as terminated
217
Statutory Special Warranty Deed
Product of statute, provided for in most states
AKA "A bargain and sale deed"
2 promises grantor makes on behalf of himself (not predecessors)
(1) grantor promises she hasn't conveyed this parcel to anyone other than grantee
(2) Blackacre is free from encumbrances made by grantor
218
Recording Acts
Establish a system for recording interests; determine which interests are eligible for recording; specify a standard title search (determines what the parties are on record notice of)
Each state has adopted a recording system along with a statute that specifies when default rule will be overridden
Protects only BFPs and mortgagees (creditors with a lien in Blackacre)
219
Bona Fide Purchaser
Purchases Blackacre for substantial pecuniary value. Do not protect donees, heirs, or devisees unless shelter rule applies.
Buyer at the time of his closing must have been without notice of A's existence
220
Notice Jurisdiction
As between 2 conflicting claims, SP prevails if SP had no notice at the time of purchase and paid fair value for the property (last BFP to enter)
1/2 of jurisdictions
221
"A conveyance of an interest in land shall not be valid against any subsequent purchaser for value, w/o notice thereof, unless the conveyance is recorded"
Notice jurisdiction
222
Race-Notice Jurisdiction
As between 2 conflicting claims, SP must satisfy both the Race (first to record) AND the Notice (no notice and paid FMV) in order to prevail over a prior grantee
223
"A conveyance of an interest in land shall not be valid against any subsequent purchaser for value, w/o notice thereof, whose conveyance is first recorded"
Race-Notice jurisdiction
224
Race Jurisdiction
As between 2 conflicting claims, the first to record a complete chain of title prevails
225
Chain of Title
Proper recordation puts later buyers on record notice, defeating later buyer's status as BFP
Chain of title= sequence of recorded documents able to give record notice of contents. Established through title search of grantor/grantee index
226
Shelter Doctrine
In notice or race-notice jurisdiction, if SP takes without notice of prior grantee, then SP may convey the property to subsequent grantees who have actual notice of prior grantee's claim
Trying to protect SP, the BFP, by making it easier for SP to transfer successfully
227
Wild Deeds
Deeds recorded either too early (before the grantor holds title) or too late (after a conveyance out by the grantee has been recorded) are outside the chain of title and ARE NOT TREATED AS RECORDED FOR THE PURPOSES OF RACE OR NOTICE STATUTES
Subsequent, properly recorded takers win
Recording a wild deed is a nullity
228
Resolving Conflicts Between Grantees: Default
Estoppel by Deed
First in time is first in right.
Priority is determined by the time of conveyance (delivery) from grantor.
Based on the theory that once grantor has conveyed that interest, grantor no longer has the power to convey same interest to subsequent party.
229
Acquiring Possessory Interest: By Transfer
Gift, sale for value
Compliance w/ statute of frauds
Default assumption: transferor conveys ALL of transferor's interest unless limitations are express or necessarily implied
230
Transfers of Future Interest
At common law: several types of future interest were not transferable.
However: most states now permit their transfer.
231
Acquiring Possessory Interest if Less than a Fee Simple Interest Transferred to Initial Grantee
Transfers to subsequent holders under that grant can be either
a) automatic- by natural end of preceding estate or happening of determinable event (e.g. to A so long as used as X, then B)
b) by execution of a right of entry
232
Mortgage
Conveyance of a security interest in land, intended by the parties to be collateral for the repayment of a monetary obligation.
Debt (represented by a note) + voluntary transfer of a lien (security interest in the debtor's lands)
Debtor- mortgagor
Creditor- mortgagee
233
Purchase-Money Mortgage
Extension of value by a lender who takes as collateral a security interest in the very real estate that its loan enables the debtor to acquire
234
Non-purchase Money Mortgage
Loan does not enable acquisition of collateral
235
Legal Mortgage
Mortgage must be in writing to satisfy the Statute of Frauds
AKA note, mortgage deed, security interest in land, deed of trust, sale leaseback
236
Equitable Mortgage
Creditor lends O a sum of money, the parties understand Blackacre is collateral for the debt. O gives creditor a deed to Blackacre that is absolute on its face.
Parol evidence admissible to show parties true intent.
If creditor sells Blackacre in bad faith, O should sue for fraud and proceeds of sale.
237
Mortgage: Rights of the Parties
Once a mortgage has been created, unless and until foreclosure, debtor has title and rights to possess
the creditor-mortgagor has a lien
238
The creditor-mortgagee can transfer his interest by...
(1) Indorsing the note and delivering it to the transferee or
(2) executing a separate document of assignment.
If note is indorsed and delivered, transferee is eligible to become a holder in due course, who takes interest free of personal defenses that could be raised against original creditor.
239
5 Personal Defenses
- Lack of consideration
- Fraud in the inducement
- Waiver
- Unconscionability
- Estoppel
*the holder in due course may foreclose the mortgage despite the presence of any such personal defense
240
7 Real Defenses
Holder is due course is subject to "real" defenses that the debtor-mortgagee might raise.
Material alteration [change in instrument's terms]
Duress
Fraud in the factum [ie about instrument]
incapacity: debtor lacked ilegal capacity
Illegality encumbrance is in further on an illicit purpose
Infancy maker in a minor
Insolvency maker was insolvent at the time of signing
241
5 Requirements for Holder in Due Course Status
- Note must be negotiable, made payable to named mortgagee
- Original note must be indorsed, signed by named mortgagee
- Original note must be delivered to transferee. Photocopy is unacceptable.
- Transferee must take the note in good faith, w/o notice of any illegality, AND
- The transferee must pay value for the note, meaning some amount > nominal
242
Mortgages and Recording Statutes
All recording statutes apply to mortgages as well as deeds. Subsequent buyer takes subject to a properly recorded lien.
In notice state: must be BFP. Buyer has record notice.
In race-notice state: Buyer will have record notice and must win race to record
In a notice state, subsequent BFP prevails over a prior grantee or mortgage who has not yet properly recordedd at time BFP takes.
243
Who is Personally Liable on the Debt if O, the debtor-mortgagor, sells Blackacre to B?
Assumed v. Subject to
If B "assumed the mortgage"
- O and B are personally liable
- B is primarily liable
- O is secondarily liable
If B takes "subject to the mortgage"
- B has no personal liability, only O does
- If recorded, mortgage remains on the land. If O cannot pay, mortgage may be foreclosed upon
244
Foreclosure: How to Proceed
Mortgagee must foreclose by proper judicial proceeding.
-At foreclosure, land is sold. Sale proceeds go towards satisfying the debt
- If proceeds are less than amount owed, mortgagee brings a deficiency action against debtor
- If proceeds exceed amount owed and there is a surplus, junior liens are paid off in order of priority. Surplus then goes to debtor.
245
Paying Out Funds from a Foreclosure Sale
Off of the top: atty's fees and rxble foreclosure expenses and any accrued interest on senior lien
The sale proceeds are the unused to pay off the mortgages in order of their priority. Each claimant is entitled to satisfaction in full before a junior lienholder may take.
Surplus goes to debtor
246
Effect of Foreclosure on Junior Interests
Foreclosure will terminate interests junior to the mortgage being foreclosed, but will not affect senior interests.
Junior lienholders will be paid in descending order with th proceeds from the sale, assuming funds are leftover after full satisfaction of superior claims. Junior lienholders should be able to proceed for a deficiency judgement. Once foreclosure of a superior claim has occurred with proceeds distributed appropriately, junior lienholder cannot look to Blackacre for satisfaction.
247
Necessary Parties and Foreclosure
Junior lienholders are necessary parties to the foreclosure action. The debtor-mortgagor is also necessary, esp. if a lender thinks it will need a deficiency judgment against the debtor.
Failure to include a necessary party results in the preservation of that party's claim, despite its foreclosure and sale. If necessary party is not joined, his mortgage will remain on the land.
248
Effect of Foreclosure on Senior Interests
Foreclosure does not effect any interest senior to the mortgage being foreclosed.
The buyer at the sale takes subject to such interest.
The buyer is not personally liable on senior debt, but if the senior debt not paid off, senior creditor could foreclose on the land.
249
Mortgages and Priorities
As a creditor, you must record.
Until you record, you have no priority. Once recorded, priority is determined by the norm of first in time, first in right-- creditor who properly records takes first.
Exception: purchase money mortgage.
250
Purchase-Money Mortgagee and Priority
Assuming she records properly, purchase-money mortgagee has first priority in the property she financed.
251
After-acquired Collateral Clause
"Floating Lien"
When loan is under-collateralized at inception
"Hereafter acquired"
252
Subordination Agreements
By private agreement, a senior creditor may agree to subordinate its priority to a junior creditor. These subordination agreements are permissible.
253
Redemption in Equity
Equitable redemption is universally recognized up to the date of sale. Prior to the foreclosure sale, debtor has the right to redeem the land. Once a valid foreclosure has taken place, the right to equitable redemption is cut off.
Debtor/mortgagor may not waive the right to redeem in the mortgage itself ("clogging the equity of redemption")
254
Equitable Redemption: No Acceleration Clause
Pay off
Any missed payment + interest + costs
255
Equitable Redemption: Acceleration Clause
Pay off
Full balance + interest + costs
256
Statutory Redemption
Recognized in 1/2 of states, statutory redemption gives the debtor-mortgagor a statutory right to redeem for some fixed period of time AFTER the foreclosure sale has occurred (typically 6 months to 1 year).
- After the foreclosure sale
- Debtor must pay foreclosure sale price to redeem
- Debtor has right to possession during the statutory period
- Effect if redemption: debtor restored to title.
257
Dodd-Frank Act
Requires residential mortgage lenders to determine a mortgagor's ability to repay before making a loan.
The terms of the loan must be understandable and not unfair, deceptive, or abusive.
A lender's violation of the act can be used by the mortgagor as a defense in the lender's foreclosure action.
258
Consumer Rights During Foreclosure
After the mortgagor has defaulted, the mortgagee must in good faith consider a request made by the mortgagor for a loan modification or other alternative to foreclosure.
The mortgagee cannot file a foreclosure action in court while such a request is pending. If the request is made after the foreclosure action is filed, mortgagee cannot proceed to foreclosure until request is resolved.
259
Lateral Support
If land is improved by buildings and an adjacent landowner's excavation causes that improved land to cave in, the excavator will be liable only if negligent. Strict liability applies to the defendant-excavator's actions, only if the plaintiff shows that because of the defendant-excavator's actions, the plaintiff's improved land would have collapsed even in its unadorned state. Plaintiff must show that the improvements on her land did not contribute to her land's collapse.
260
The Riparian Doctrine
Under the riparian doctrine, water belongs to those who own the land bordering the water course ("riparians")
One riparian will be liable to the other riparians when her use is unreasonable
261
Prior Appropriation Doctrine
Water belongs initially to the state, but the right to use it can be acquired by an individual, regardless of whether or not he happens to be a riparian owner.
Rights are determined in priority of beneficial use.
Norm for allocation: first in time, first in right
Any productive/beneficial use is sufficient
262
Groundwater
AKA percolating water
Water beneath the surface of the earth that is not confined to a known channel.
Surface owner's rights w/r/t groundwater: can make reasonable use
263
Surface Waters
Those waters which come from rain, springs, or melting snow which have not yet reached a natural water course or basin
264
Common Enemy Rule
A landowner can make changes on the land to fight surface water
265
Law of Trespass
Exclusion: entry only with consent of possessor
Invasion by physical object
266
Exceptions to the Law of Trespass
1. Emergency or necessity
2. By consent of possessor
a. Leasehold interest: lose right to complete control tenant's visitors
b. place of commerce: federal, state, and local discrimination laws may limit ability to exclude unless predecessor has a legitimate business related reason for excluding
267
The Shack Exception
Famers control over migrant workers creates intolerable vulnerability, protected by common law right to receive visitors and public assistance while residing on farmer's property-- but that right is balanced against farmer's legitimate business needs for safety and security of the worksite.
268
How Does a Possessor Remove a Trespassor?
An ejectment action
269
Remedies for Breach of Exclusive Possession
1) Damages for retrospective harm: restitution principle
| 2) Injunction to bar future intrusions or have specific performance to remove existing intrusion
270
Private Nuisance
Substantial, unreasonable interference w/ another's land use
271
Nuisance and the Hypersensitive Plaintiff
No recovery
272
Remedy for Breach of Exclusive Possession: Injunction
Injunction to bar future intrusions or have specific performance to remove existing intrusion.
Strong default. Makes functional the right to say no.
NOTE-- exceptions
273
Remedy for Breach of Exclusive Possession: Injunction
EXCEPTIONS
Innocent Improvement
1) innocent intrusion
2) Injunction will grossly enrich TH
3) if shown: TH gets choice
- by improvement for FMV increase attributed to structure
- Sell land for FMV
274
Remedy for Breach of Exclusive Possession: Damages for Retrospective Harm, Restitution Principle
A) default measure-- FMV diminution in property value
B) if possessor held for personal use, then measure may be for restoration EVEN IF cost greater than diminution in FMV (& maybe even greater than FMV of property)
C) if possessor can show trespass was in bad faith with specific intent and for personal benefit--> ENHANCED
- disgorgement of benefit earned thru wrong
- punitive damages (if conduct antisocial)
275
Remedy for Breach of Exclusive Possession: Injunction
EXCEPTIONS
Minor Encroachment
a) Minor encroachment- relative hardship
1) Innocent intrusion- good faith mistake
2) Disproportionately high cost to remove intrusion
3) Relatively little harm to TH's property
- value land taken less than $ removal
- intrusion does not materially impede TH use
4) if shown: TH gets FMV of land taken
276
Zoning
Pursuant to its police powers, the government may enact statutes to control land use
277
Variance
Principal means to achieve flexibility in zoning. Grants landowner permission to depart from a zoning ordinance.
Proponent must show:
- undue hardship
- the variance wont diminish neighbor's property value
278
Nonconforming Use
Once lawful, existing "nonconforming" use cannot be eliminated all at once unless just compensation is paid
279
Cumulative Zoning Ordinance
Creates a hierarchy of uses of land, where a single family home is the highest use, followed by a two-family home, then an apt building, then a strip mall, then a factory.
Under a cumulative zoning ordinance, land that is zoned for a particular use may be used for that particular use and any higher use.
280
Noncumulative Zoning Ordinance
Land may be used only for the purpose for which it is zoned.
281
Unconstitutional Exactions
Exactions are amenities government seeks in exchange for granting permission to build.
Exactions must be reasonably related to the impact of the proposed development.
282
Special Considerations for Common-Interest-Communities
Authorization for structure & relationships is based on state enabling statute, which specifies required mechanisms for creating community, establishing governance procedures, and basic norms. Transfer of control from developer to community governance, etc.
283
Declaration
Basic document that establishes the form of the community, as well as all of the covenants, conditions, and restrictions that will apply within the community.
Each deed for a unit sold must make reference to the community declaration.
284
Declarations Contain
a) a set of basic promises: restrictions on use, easements, common areas
b) provisions for amendment of the declaration
c) provisions for general and special assessments
d) provisions for composition of board of directors, incl. their election, as well as board's power to make new rules, amend or rescind rules
e) provision relating to enforcement for noncompliance, including procedures for enforcement and sanctions for non-compliance
285
Judicial Review of Community in Common Disputes: Challenges to Amendment of Declaration
Some jurisdictions treat them like the rules in the Declaration, but some treat them like regulations made by the CIC board
286
Judicial Review of Community in Common Disputes: Challenge to the Regulation Made by the Community in Common Board and Not Contained in the Declaration
Burden may shift to the board to show that rule is reasonable in general-- as a practical matter this will require board to show that the rule responds to a real problem and is reasonably tailored to achieve that goal
287
Judicial Review of Community in Common Disputes: Challenge to Rule Contained in the Declaration
Strong presumption of validity-- challenger must show that rule is unreasonable as applied in any ordinary circumstances or that the rule violates the challenger's fundamental rights
288
Judicial Review of Community in Common Disputes: Challenge to Specific Application by the Board
The board is typically charged with enforcing rules and regulations in general; the standard of review by civil courts is substantially similar as that used by appellate courts.
For questions of procedure: de novo
For conclusions of fact: clear error/abuse of discretion
289
Condominiums: Ownership
Each owns the interior of her individual unit plus an undivided interest in the exterior and common elements
290
Homeowners Association (HOA)
Owner of each condominium is a member of the HOA.
Oversees common elements. Bases rules contained in declaration of covenants, conditions, and restrictions (CCR) prescribing what owners can and cannot do with their property.
CCR enforced by governing board elected by HOA.
Each owner must pay regular dues.
291
Good Husbandry
Clearing some trees in order to allow the remaining trees to get bigger and thus more valuable for future possessors
292
Where to Obligations Regarding Waste Exist?
a) if possessor holds a defeasible fee simple, the possessor has no obligations to successive interest holders (no claim of waste)
b) if possessor holds an interest w/ a "natural" end (lease/life estate), the possessor has an obligation not to "waste' the property. Possessor has right to benefit from current sue of the property but must care for it such that future possessors interests no diminished
293
2 Elements of Current Possessor's Obligations to Preserve Property re: Permissive Waste
1) Use the resources generated by property to maintain property. If maintenance costs exceed current user's benefit obtained from property, she has no obligation to use own resources for maintenance
2) In case of necessity (current income insufficient to maintain property), current possessor has obligation to notify future interest holder, and if future interest holder unwilling to make up shortfall, can bring an action to declare obligations limited to amount derived from estate.
294
Affirmative Waste: Sheer Destruction
Current possessor liable for damage (measured as for a trespasser), except many states impose statutory enhancements which 2x or 3x damages for waste
295
Affirmative Waste: Removal of Non-Renewable Resources
Current possessor liable to waste unless
1) Grantor expressly allowed current possessor to extract
2) Extraction is defensible as "good husbandry"
3) Extraction falls within "Open Mines" doctrine
296
Termination of Easements: Through Conduct (Abandonment)
Benefit holder engages in conduct that reflects intention to permanently discontinue use of easement.
297
Rights of Possessors: Power to Transfer Default Rule
Grantees are assumed to have the power to transfer their interest. Any restriction on the power to transfer (a direct restraint on alienation) must be made express in the grant
298
Type of Transfer: Inter vivos
The transfer takes effect during the grantor's lifetime
299
Type of Transfer: Post Mortem
The transfer takes effect after the grantor's death.
Even though the will is made during the grantor's lifetime, the will does not take effect until after the grantor's death, so gifts in a well (as well as intestate transfers to heir) are post-mortem transfers.
300
Types of Direct Restraints on Alienation: By Rights of Grantor and Grantee under DROA
1) Disabling
2) Forfeiture
3) Promissory
301
Will a Restraint on Use Be Construed as a DROA?
"To A, so long as the property is used as the HQ for GM"
Charitable grants are almost never construed that way.
Transfers to commercial entities can be given that interpretation if it requires that the same entity hold the property.
302
Validity of DROA: Forfeiture Restraints Imposed on a Fee Simple Estate
If total-- struck down
If partial ask:
- to what extent does it impair the possessor's ability to make transfers?
- does the restraint serve a legitimate purpose? (overall marketability of the land in development, units in a condo)
- if overly restrictive, or no reasonable purpose, struck down
303
Validity of DROA: Forfeiture Restraints Imposed on a Leasehold or Life Estate
Upheld if serves a reasonable person
304
DROA: Forfeiture
"To A, so long as the property is not sold"
Gives O the power to retake possession as soon as A sells
305
Promissory DROA
"A promises not to transfer the property"
Typical in landlord tenant law
306
Disabling DROA
"A shall not have the power to transfer"
or
"This property shall not be sold, mortgaged, leased, or otherwise transferred"
Grantor has no power to release A from this restriction-- land is bound up. Any attempt by A to sell or transfer is void.
Disfavored, struck down or reinterpreted as a promissory DROA.
307
Types of Direct Restraints on Alienation: Extent of Interference with the Power to Transfer
Total: completely deprives A of the right to make transfer
Partial: leaves A with the right to make some class of transfers, but restricts others
308
Law of Bailments
Bailment: entrusting of goods to another person for some limited purpose that does not include transfer of ownership (i.e. dry cleaning)
When a bailment is for mutual benefits, the bailee must use reasonable care in her custodianship
309
Bailee
Person to whom the goods are entrusted
310
Bailor
Person entrusting the goods
311
2 Ways to Give a Gift
Inter Vivos: made during the giver's lifetime. Irrevocable.
Causa Mortis: in anticipation of the giver's death. Freely revocable; may change mind up until the giver's death.
312
2 Ways to Deliver a Gift
Delivery is needed to make a gift valid
Actual delivery is required to make a gift valid whenever actual delivery is possible. If it's movable, it must be physically transferred.
When actual delivery is impractical, symbolic delivery is permitted (ie keys for delivery of a car, a certificate of title, a writing)
313
To Have a Property Interest Is...
Includes a host of associated rights (use, enjoyment, exclusion, lend/sell/donate) and duties (to do not harm). Liability will attach.
